The participants were:

Outside Counsel

David Cook, a labor relations and employee benefits litigation lawyer from Cincinnati who represents unions, plaintiffs and fiduciaries in employee benefits litigation.

David Borgen, a partner in Oakland’s Goldstein, Demchak, Baller, Borgen & Dardarian. The firm represents plaintiffs in class actions litigation, including employment discrimination, wage and hour, environmental and other public interests litigation and attorneys’ fees litigation. Some of their clients’ litigation targets have been State Farm Insurance, Home Depot and Enterprise Rent-a-Car.

Stephen Hirschfeld, a partner in the San Francisco offices of Curiale Dellaverson Hirschfeld & Kraemer (Note to law firm marketers for name change suggestions). He is an employment lawyer who does defence work for management.

Inside Counsel

Nicole Pollard, Associate General Counsel for the American Federation of State, County and Municipal Employees International Union, AFL-CIO in Washington D.C. She represents and advises the International Union and its affiliates on labor and employment matters.

Kimberly C. Shumate, Associate Legal Counsel for The Ohio State University handling all of OSU’s labor and employment matters regarding employment litigation Equal Employment Opportunity and administrative charges and advising administration on employment issues and policies.

Bettina Yip, the Labor and Human Resources Cingular Wireless. She concentrates primarily on labor and employment law.

Each spoke for about ten minutes on their perspective of the inside outside counsel relations, followed by a brief discussion among themselves and a few questions from the floor.

Power of personal relationships

Cook asserted a recurrent theme about the power of personal relationships. Much of his work comes from a network of personal relationships as well as referrals from the Lawyer’s Coordinating Committee. His advice to lawyers in private practice was to learn both the internal client culture and also to learn the expectations of each client. Some of his concerns in establishing a relationship with a new client are:

• Is communication centralized or decentralized?
• What are the channels of communication for various issues?
• What is the most effective and desired form of communication for your client?

• Advise the corporation on the risk of litigation, i.e., to weed out the subjective criteria.
• To be an inside marshal as to costs and communication within litigation.
• To encourage inside counsel to be more directly involved corresponding with him because inside counsel has more at risk on behalf of the corporation than outside litigation counsel.

He emphasized the importance of knowing the client’s business. By way of example, he spends one day per year on the back of a garbage truck operated by his waste disposal client. Besides being fun, he said it makes him understand the business and the jobs performed as well as the technical terminology. He also stressed the importance of timely and frequent communication and setting realistic budgets and sticking to them for all litigation matters. After three months of a litigation matter, he assesses each case with his client. Can it be settled? Should it be settled? If so, get it done. If it’s not to be settled and it’s a winner then his advice to his clients is try the case, don’t settle at the courtroom door. He commented that bills to a client should be a statement of what the client already knows. No surprises!

Hirschfeld also offered what some might consider a controversial approach to customer service. In his view, if a client calls and wants to fire someone, the attorney ought to say, "Yes you can. But here are the risks. Here are the chances of them being realized and here are your available options in making your business decision."

Seeking expertise

Pollard defends 90% and prosecutes 10% of the cases that land on her desk. Mainly she represents the international union when they are added as a defendant on a "guilt by association" basis. She finds local counsel through the LCC (Lawyers Coordinating Committee) Bulletin
published by the AFL-CIO.  It is a directory of union-side labor employees throughout the country. She seeks expertise in a particular area of litigation and gains assurance that the contracted resource will be the one doing the work.

She has little tolerance for files touched by unauthorized lawyers within the firm. Pollard suggested that firms are not always honest about what resources they will provide. She is angered by billing surprises that will upset her budget and bespeak dishonesty. She also bemoans firms that do not actively communicate settlement opportunities but keep a file going for their own purposes, or because there is no pressing need for the firm to settle. She acknowledges that there is sufficient blame for both inside and outside counsel when communication failures prolong the cost and time of files.

Shumate advises OSU on employment matters relating to the 30,000 employees of the University. Because OSU is a state agency there is a cap on hourly rates. Unlike most clients, the university accepts paying for the education of junior associates whose time on a file can represent very little value added.

She chooses counsel based on:

• Technical expertise, which is merely the starting point.
• Ability to work as a team with inside counsel.
• A pre-existing relationship between outside counsel and opposing counsel or even outside counsel and the assigned judge.
• Respect between inside and outside counsel. Included in that respect is that the university’s has goals driven not just by victory, but often other public interests to which their counsel must be sensitive.
• Creativity in working within the University’s mandated constraints in their procedures and practices.

Law firms should acknowledge that inside counsel have clients as well recognize the need to make inside counsel look good, where they can. To build strong relationships with inside counsel, law firms should accept the view of inside counsel on strategy matters, and do what they are told by inside counsel. Inside counsel and outside counsel must have a clear understanding of each other’s expectations and work within that framework.

In response to questions from the floor, the following points were emphasized by inside counsel:

• Clients are not necessarily looking to save money, but they are angered by wasted money that appears on bills, such as internal communications within the firm, where each is a timekeeper. One client tolerates internal communication to the tune of x% of the bill; any amount billed in excess is not paid.
• Certain clients will only pay for the representation of one lawyer at meetings or depositions. "Bring as many as you want but only one can bill," one panelist said.
• Every inside counsel remarked at how much more trusting they are of counsel who make an effort to know their client’s business well, the terminology, the pressure points, and the personalities within the organization.